When is Enough Really Enough? The Importance of Experts in Music Copyright Infringement Actions

On June 17, 2014, a federal judge in Illinois granted summary judgment to Stefani Joanne Germanotta against plaintiff, Rebecca Francescatti, in a copyright infringement matter because he found that no reasonable trier of fact could find that Ms. Germanotta’s song, “Judas,” is substantially similar to Ms. Francescatti’s song, “Juda.” You may wonder, why you should care about these two unknown figures in the music industry, but the truth is, Ms. Germanotta is far from unknown. In fact, she has been a staple in the pop music industry since she burst onto the scene in 2008 with the release of her album, “The Fame,” which had such hits as “Just Dance” and “Poker Face.” By now you may have guessed—Ms. Germanotta is none other than Lady Gaga.

In her complaint, Ms. Francescatti alleged that Lady Gaga’s song, “Judas,” from the album “Born This Way,” infringed Francescatti’s copyright in her song, “Juda.” According to Ms. Francescatti, she worked with co-defendant sound engineer, Brian Joseph Gaynor, to write “Juda” in 1999. Ms. Francescatti alleged that Mr. Gaynor later collaborated with Lady Gaga in 2010 to create “Judas.” According to Ms. Francescatti, the two songs have remarkably similar melodies, structure, bass lines, and further similar features. This allegation was unsupported by expert testimony.

The record established that DJ Paul Blair was introduced to Mr. Gaynor in 2010 for the purpose of creating original material for Gaga’s ”Born This Way” album, but DJ Paul Blair “denies ever having heard or received a copy of the Francescatti song, and denies giving a copy of the song to Gaga.” Ms. Francescatti contended that the similarity in the song names evidenced infringement, but Lady Gaga maintained that she chose the title “Judas” because she felt betrayed by an ex-boyfriend and “Judas is the biblical betrayer of all things.” In spite of this explanation, Ms. Francescatti filed suit in 2011.

In Lady Gaga’s motion for summary judgment, she stated that she never met with Mr. Gaynor and that Ms. Francescatti failed to present evidence that Mr. Gaynor or DJ Paul Blair ever provided Lady Gaga with a copy of “Juda.” Lady Gaga claimed that Mr. Gaynor and DJ Paul Blair had no part in composing “Judas,” and that she wrote the song with her normal producer, RedOne. Ms. Francescatti countered that Mr. Gaynor and DJ. Paul Blair are both credited on “Born This Way,” thereby giving rise to an inference that they worked on “Judas.”

The court granted Lady Gaga’s motion for summary judgment, finding that Ms. Francescatti failed to demonstrate actual copying of the protectable elements of “Juda.” The court held that although a reasonable juror could find that a nexus existed between the parties and that defendants had an opportunity to hear the Francescatti song, the works are not substantially similar. According to the court, “music…is inherently subjective,” and consideration of expert testimony is warranted because “a court’s lay ear may not be able to adequately assess the similarities between musical works.” The court further remarked that:

“the concerns raised with the ordinary observer standard as related to music copyright cases can be ameliorated with the use of expert testimony in this case. Due to the difficulty we face in ascertaining the alleged similarities between the songs, expert testimony is warranted in order to determine whether objective copying has occurred under the first prong of the substantial similarity analysis. Specifically, because of the different musical genres we are presented with and the fact that the Gaga Song is computer-generated, our lay ears cannot be relied upon to determine whether there has been copying.”

Interestingly, an email from Ms. Francescatti on the day her lawsuit was filed explicitly admits to her family that “the songs don’t sound the same.”

Applying Illinois precedent, the court found that “although…Francescatti has established copying under the extrinsic test, she has failed to meet the requirements of the intrinsic test.” Specifically, “[N]o reasonable trier of fact could find under the ordinary observer standard that the allegedly infringing elements of Gaga’s song capture the total concept and feel of the Francescatti song. Even if the songs did share a similar total concept and feel, however, such similarities would arise from unprotectable elements.”

At the end of the day, the granting of Gaga’s motion raises the question of just how much it takes to establish that an individual has infringed another’s musical copyright. It seems there was sufficient evidence of a connection between the two such that Ms. Francescatti should have been able to defeat the motion for summary judgment. It appears from the court’s emphasis on expert testimony regarding musical copyright matters that if Francescatti had produced an expert who could testify that the two songs were substantially similar, and that Ms. Francescatti’s song may have been copied, there would have been a triable question of material fact. The lesson here is that experts are vital in music copyright cases. Or maybe, the lesson is simply that it is just more difficult to prevail against a superstar when courts are aware that these individuals are often the victims of extortionate lawsuits.